HER MAJESTY THE QUEEN, v. MICHELLE BLIZZARD., 2013 NBPC 27

2013 NBPC 27 CANADA File No.: 06914902 PROVINCE OF NEW BRUNSWICK PROVINCIAL COURT BETWEEN: HER MAJESTY THE QUEEN, -and- MICHELLE BLIZZARD. BEFORE: Judge Marco R. Cloutier TRIAL HELD: Saint John, New Brunswick DATE OF DECISION: December 9, 2013 APPEARANCES: Christopher Titus, on behalf of Her Majesty the Queen Hazen Brien, on behalf of the Accused

M.R. CLOUTIER PROV. CT J : I INTRODUCTION [1] Michelle Blizzard (“the Accused”) is charged that on November 28, 2012 in Saint John, New Brunswick, she refused to complywith a breath demand contrary to s. 254(5) of the Criminal Code (“the refusal”). She is also charged that on the same date she operated amotor vehicle in Saint John, New Brunswick while her ability to do so was impaired by alcohol or drug contrary to s. 253(1)(a)(“impaired driving”). [2] The Crown called six witnesses at trial; the Defence called none.

There was no Charter application filed by the Defence. [3] Admitted into evidence at trial was Exhibit C-1 (“C-1”) consisting of 13 laser photocopies depicting, among other things, bloodstains on the steering wheel and on an envelope located on the passenger seat, and property damage to the exterior of a burgundy DodgeCaravan. A written statement by Lawrence Snow was marked as Exhibit D-1 (“D-1”). Marked as Exhibit D-2 (“D-2”) was a Notice andOrder of Suspension (90 days) dated November 29, 2012 issued by Cst. Villareal (“the Notice and Order of Suspension”). II ISSUES [4] The Defence argues two main points:

(1) Cst. Villereal, the arresting officer, did not have reasonable and probable grounds tomake a breath demand (“Breathalyzer demand”) to the Accused under s. 254(3); and (2) the Breathalyzer demand was not made as soonas practicable. [5] A person who refuses to comply with a Breathalyzer demand which does not itself comply with s. 254(3)(

a) is entitled to anacquittal as there is no obligation to comply with an unlawful demand: R. v. Grant, (SCC), [1991] 3 S.C.R. 139; R. v.Lytle, 2008 SKPC 156. Clearly, in such cases, no Charter application or Charter voir dire is required: Grant, supra and R. v. Luider-Grebnev, 2013 SKP 22. III EVIDENCE William Hawkins [6] The first Crown witness was William Hawkins. He testified that on November 28, 2012, at about 23h30 to 24h00, he waswalking home to Bradley Lake Road, Saint John, New Brunswick from Saint John High School, Saint John, New Brunswick. He washeading towards Golden Grove Road.

It was a dark but clear night. He described the road as being a country road, with no sidewalks and“it’s in the woods”. [7] Suddenly, he was slowly approached from behind by the Accused who was operating a dark red minivan, a Dodge Caravan asdepicted on C-1 (“the Van”). He could tell the color of the Van because of its exterior lights and the moonlight. The Accused was thesole occupant of the Van. [8] He testified that the Accused seemed intoxicated as she was “leaning out of the window still coasting and her speech wasslurred”.

He was standing about 2.5 meters from her when she asked if he knew how to get to Rothesay Avenue. She also offered him aride which he refused. She then sped off. [9] Mr. Hawkins continued walking for about 20 minutes when he recognized the Van crashed into someone’s yard. However, hedid not see the Accused at the scene; only the Van. He also observed police vehicles’ emergency lights turned on at the scene. He wasconvinced that it was the Van he observed the Accused operating earlier; that is, it was the same shape and color and it was a Dodge. Heinformed the officers accordingly.

He testified that no other car had driven by him since the Accused had approached him. He alsoexplained that there are no other intersecting roads between the location where he was approached by the Accused and the scene of theaccident. [10] On cross-examination, Mr. Hawkins testified that he was asked by an officer on the scene; namely, the father of his step-father, tofill out a written statement which he did. He clarified that it was not a question and answer type of statement and that he had no guidanceas to what to include in the statement. He was simply given a blank form to fill out on his own.

He also admitted that he did not writedown slurred speech, reference to moonlight, or walking for 20 minutes between the time he was approached by the Accused and theaccident. He reminded the Court, however, that in his statement, he wrote that he felt the Accused was either impaired or intoxicated. Hebased his opinion on the way she was driving “leaning out the window which was an obvious unsafe thing to do”. Finally, despite arigorous cross-examination, he remained adamant that the Accused was the operator of the Van and that she was intoxicated. Judith Dawson [11] Judith Dawson also testified for the Crown.

She indicated that, on November 28, 2012, she lived at 2846 Golden Grove Road,Saint John, New Brunswick which is where this accident occurred. More precisely, she lived at the end of Bradley Lake Road, on

Golden Grove Road. She explained that Bradley Lake Road ends at Golden Grove Road and it is a “T” junction, so to speak. Her house has 300 feet frontage. It faces Golden Grove Road and it is directly across from Bradley Lake Road. [ 12 ] At approximately 23h30, she heard a bang consistent with a vehicle accident. She looked through her spare room window and observed a Dodge Caravan, wine in color, down in her yard at the end of the guardrail. She had a good view of the scene of the accident as it was well lit by a street light.

She remained inside the house the whole time but she opened the window. [ 13 ] She observed the operator of the Van trying to drive out of her yard. The Van had landed right where a new tree was planted. Mrs. Dawson called the police. She was hearing the “foot against the pedal”. The Van was stuck and it was spinning. She observed a female getting out of the Van and noticed that she had long dark hair.

She recalls hearing her husband, Lawrence Snow, asking the female if she was fine and she replied: “Don’t call the cops, I’ll pay for that…I wasn’t speeding.” She noted that she had a slurred voice, either from drinking or being shaken. She also observed the female getting out of the Van and “half falling, trying to crawl over the lawn, using her hands as well to get up and being unsteady”. She was average build. She fled down the road and would “duck in driveways or behind trees”. When vehicles would go by, she would walk back on the road toward town. She was wearing a light jacket, like light blue and white.

She kept going down the road and the police arrived at the scene. Mrs. Dawson then provided details of her observations to police. [ 14 ] On cross-examination, Mrs. Dawson admitted that there were previous accidents at this location, probably five within the last 20 years and perhaps a more recent one. She also admitted that she gave a written statement to an officer.

When asked why the part of her testimony indicating that the operator of the Van had a “slurred speech”, the part where the Accused said to her husband “don’t call the cops, I’ll pay for that…” and her observations of the Accused “half falling out of the Van trying to crawl up the hill” were not in her statement, she replied that “everything happened so fast, there was a lot going on, maybe I did not say everything or the officer perhaps did not write everything, I can’t remember what I said word for word”. Cst. Black [ 15 ] Cst. Black also testified for the Crown.

She indicated that she was dispatched to the scene of the accident late on November 28, 2012. She arrived shortly after midnight. She first had a very brief discussion with Mrs. Dawson as to what happened and as to the description of the operator of the Van, including the color of her jacket, as Cst. Villareal was detaining a female at a nearby location. Cst. Black immediately conveyed that information to Cst. Villareal via radio. Likewise, she testified that there were many officers on scene on the night in question. [ 16 ] Cst. Black returned to Mrs. Dawson’s house in the early hours of November 29, 2012.

It was about 00h25-00h35. Mrs. Dawson and her husband, Mr. Snow, were sleeping when Cst. Black arrived. Mr. Snow was a school bus driver and he had to work the next morning. In fact, Cst. Black woke up Mrs. Dawson to take her written statement. She testified that had Mrs. Dawson mentioned “slurred speech and running down the road” or other indications of impairment, she would have included that in her written statement. [ 17 ] Cst. Black also clarified that she had two conversations with Mrs. Dawson.

The first one was of very brief duration and it was for the sole purpose of obtaining a rough description of the operator of the Van and as to what had occurred. On that occasion, she did not take notes; time was of the essence. It was when she returned to Mrs. Dawson’s residence, between 00h25 and 00h35, that she woke her up and took a written statement. Lawrence Snow [ 18 ] Mr. Snow was also a Crown witness. He lived with the other witness, Judith Dawson, at 2846 Golden Grove Road in Saint John, New Brunswick on November 28, 2012.

He too testified that, on that date, he heard a bang consistent with a vehicle accident at approximately 23h30. He stated he was in bed at the time. [ 19 ] He went outside the house and observed a burgundy Dodge Caravan that had crashed onto their property. The corner street light illuminated the intersection very well. He observed a female behind the wheel, the engine was still running and she was “trying to get the Van out of where she was…revving the engine”. He asked if she was hurt and she replied “don’t call the cops”. He indicated that his wife had already called them.

She added “no don’t call the cops, I’ll pay for it”. She told him “I want to get out of here”, like “she was drunk”. He indicated to her that she was not going anywhere as she “tore the whole front end” and she had caused damage to his property. [ 20 ] As the female was sitting behind the driver’s seat, he went to the back of the Van to assess the damage.

He then heard the driver’s side door close and observed the female “turn around all fours trying to get up over the bank….crawling up first over Golden Grove Road, then turned and then down Golden Grove Road towards town… like she appeared confused to me…running from side to side”. He also observed her “ducking in and out of everyone’s driveway as vehicles approached, in behind bushes”. The police arrived about 15 minutes after the accident. He described the female as having long black hair, early forties, average size and wearing a white and blue jacket.

He stated she was the sole occupant of the Van. [ 21 ] On cross-examination, Mr. Snow admitted that he did not notice any injuries to the Accused’s face. He also expected that the parts of his evidence indicating that “like she was drunk”, “crawling up over the bank” or the description of the Accused’s jacket would

all be included in his statement given to the officer. However, it was not. Above all, he was adamant that the Accused was drunk, albeit not included in his written statement. Cst. Villareal [ 22 ] Cst. Villareal was another Crown witness and he was the arresting officer. He has been a peace officer for almost ten years. He testified that, on November 28, 2012, at about 23h25, he was dispatched to the scene of a single vehicle accident at civic address 2846 Golden Grove Road in Saint John, New Brunswick.

It was a clear night; no rain or fog. [ 23 ] While en route, he received updated information that the female operator of the Van was attempting to flee on foot. He was given a brief description of the suspect and apprised of general details and circumstances surrounding the accident. He then proceeded onto Golden Grove Road but did not observe any foot traffic. [ 24 ] Cst. Villareal then attended the scene of the accident to observe the Van crashed into the yard and went back to search for foot traffic on Golden Grove Road.

He was also getting continuous information from the Saint John Police Force Communication Centre (“Communication Centre”) as to any development in the investigation. [ 25 ] He observed a female walking underneath an overpass who was identified as Michelle Blizzard. He noted injuries to her bottom lip and blood on her jacket. He also noted the stripes on her jacket which matched the description provided earlier by the Communication Centre. He advised the Accused that he was investigating a motor vehicle accident. He noted that she was either trying to get away from him or to simply avoid him.

Thus, he told her she was being detained in relation to an accident which had occurred up the street some half a kilometer away. Cst. Villareal noted that the Accused was unsteady on her feet. [ 26 ] Cst. Villareal noted that the Accused’s cut on her face was quite deep, quickly realizing that she needed medical attention. Thus, he called an ambulance. In the meantime, she sat in the police vehicle where Cst. Villareal noted a strong odour of alcohol from her breath. He also noted that she had red heavy eyes and slurred speech.

At that point, he believed she had been involved in an accident; however, he felt he did not have enough grounds to believe she was the operator of the Van. [ 27 ] While the Accused remained in the back of the police vehicle, Cst. Villareal was informed by Cst. Cains, who was at the scene of the accident, that the registered owner of the Van was Michelle Blizzard. Cst. Villareal asked the Accused if she was indeed the registered owner to which she replied: “yes”.

At 23h40, he advised her that “being the owner and the responsible” for the Van involved in the accident, she was under arrest for leaving the scene of the accident and that he would pursue his investigation for operating a motor vehicle while impaired. [ 28 ] At that point, Cst. Villareal requested that the K-9 officer proceed with a track search from the scene of the accident to determine where the operator of the Van had fled. The K-9 officer arrived directly where Cst. Villareal had located the Accused. Cst. Villareal asked the Accused if she had the key to the Van.

She pulled out a “Dodge” key from her jacket which she gave to him. Cst. Fanjoy then arrived at the scene where Cst. Villareal had located the Accused and she accompanied her by ambulance to the Saint John Regional Hospital (“the hospital”). [ 29 ] In the meantime, Cst. Villareal returned to the scene of the accident to meet other officers for further development in the investigation. Cst. Cains shared with him the description of the Van and its operator as witnessed earlier by a passerby civilian, Mr. Hawkins. The description matched that of the Accused.

It was also learned that the female operator was the sole occupant of the Van. Cst. Villareal inspected the Van and observed a fair amount of blood on the inside along with an empty case of Budweiser beer. He tried the key given to him by the Accused and with it he could start the Van. [ 30 ] Cst. Villareal testified that, at that point, 30 minutes before attending the hospital, with the information he had gathered coupled with his observations, he formed the opinion that he had reasonable and probable grounds that the Accused had operated the Van while impaired by alcohol when it crashed into Mrs.

Dawson’s and Mr. Snow’s yard. [ 31 ] He based this opinion on his observations of the Accused’s red heavy eyes, slurred speech, being unsteady on her feet, the strong smell of alcohol on her breath, information conveyed to him by Cst. Cains throughout the investigation of civilian witnesses, injuries to her lip consistent with blood observed in the interior of the Van and the K-9 officer following a track to the area where he had located the Accused. He had also observed an empty case of beer in the Van and the key provided to him by the Accused could start the Van.

He was investigating an unexplained single vehicle accident on a clear night with no rain or fog and involving the operator of the Van who had fled the scene. He also knew that he had been dispatched at 23h25 for an accident that had just happened.

[ 32 ] At approximately 00h45, Cst. Villareal attended the hospital and met with Cst. Fanjoy who had accompanied the Accused. Cst. Villareal went to the Accused’s room and advised her that, as a result of his investigation, she was being charged with operating a motor vehicle while impaired by alcohol or a drug. She was read her Charter rights and cautioned to which she answered: “yes” and “I want to speak with lawyer Brian Monroe”. She also responded: “I’ve been drinking, I am not going to lie, but I was not driving”. [ 33 ] At 00h50, Cst.

Villareal read the Breathalyzer demand to the Accused to which she replied: “I understood”. However, by then, the Accused had yet to be discharged from the hospital. In fact, at 01h40, Dr. Atalia decided to perform stiches on her cut which he completed at 01h55. The Accused was then discharged from the hospital. Based on his conversation with Dr. Atalia, Cst. Villareal was satisfied that the Accused could safely provide a sample into the Breathalyzer instrument. [ 34 ] At approximately 02h05, Cst. Villareal drove the Accused from the hospital to the Police Station where they arrived at 02h14.

At 02h20, the Accused attempted to speak with lawyer Brian Monroe but he could not be reached. She was offered the opportunity to contact duty counsel but she declined, stating: “they ain’t worth shit”. [ 35 ] At 02h25, the Accused was brought over to Cst. Prosser in the breath room, so to speak. At 02h52, Cst. Villareal observed the Accused openly refusing to provide a sample into the Breathalyzer instrument. [ 36 ] At 02h57, Cst. Villareal advised the Accused that she was being charged for refusal under s. 254(5) . She was again read her rights under the Charter and cautioned.

She indicated she understood but she “only wanted to speak with a lawyer in the morning”. [ 37 ] On cross-examination, Cst. Villareal confirmed that he prepared the Notice and Order of Suspension . Although he could not explain why “slurred speech” was not checked off, he was adamant that the Accused indeed had a “slurred speech”. [ 38 ] He also admitted that “unsteady on feet” was not checked off as it was not an option indicated on the form. He explained that, to him, “unsteady on feet” does not mean “fumbling” as indicated on the form. Cst.

Villareal also conceded that the “unsteady on feet” could have been from the accident rather than the impairment. He also agreed that this symptom was not written anywhere in his Occurrence Report. [ 39 ] He had also checked off “blood shot eyes” on the form although Counsel for the Accused submitted to him that he did not testify to observing this symptom. He responded that the Accused clearly had “blood shot eyes”. Instead, he had testified that she had “red heavy eyes”. Cst. Prosser [ 40 ] The Crown’s last witness was Cst. Prosser, a qualified technician designated to operate the Breathalyzer instrument.

He testified that on November 29, 2012, at 02h23, he was dispatched to the Police Station at 1 Peel Plaza in Saint John, New Brunswick. [ 41 ] Cst. Prosser was introduced to the Accused by Cst. Villareal in the breath room at approximately 02h25. He immediately began his standard 20 minute observation period as directed by his department during which, in addition to noting any indicia of impairment, he satisfied himself that the Accused had no hiccups, was not belching, nor did she have anything in her mouth. He also made notes of her general demeanor and how she was dressed.

As to indicia of impairment noted up to that time, Cst. Prosser observed that the Accused had blood shot eyes and that she was stumbling. [ 42 ] He carried on by asking the Accused if she had been read the Breathalyzer demand, the right to counsel and cautioned to which she replied: “yes”. At 02h51, the Breathalyzer instrument was running and ready to accept a sample. However, at approximately 02h52, the Accused openly refused to provide a breath sample. By then, he had also noted her slurred speech. Cst. Villareal was present the whole time. [ 43 ] On cross-examination, Cst.

Prosser admitted that the symptoms of “slurred speech” and “unsteady on feet” to which he testified were not included in his Offence Report.

[44] Likewise, he admitted that in a document entitled “Investigation Guide for Impaired Persons” which he prepared, he checked“fair choice of words” for speech and “fair” for balance. Upon being confronted with this discrepancy, he attempted to explain that heonly completed part of this document. [45] On re-direct, however, Cst. Prosser testified that in his “Breath Technician Operating Sheet”, he made note of “slurred speech”and “red eyes”. IV RELEVANT SECTIONS OF THE CRIMINAL CODE [46] Section 253(1) of the Criminal Code provides that: Operation while impaired 253.

(1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or ofrailway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not, (

a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or (

b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in onehundred millilitres of blood. For greater certainty

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(

a) includes impairment by a combination ofalcohol and a drug. (Underline mine) [47] Section 254(3) of the Criminal Code provides that: Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours hascommitted, an offence under

section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon aspracticable, require the person (

a) to provide, as soon as practicable, (

i) samples of breath that, in a qualified technician’s opinion, will enable a proper analysis to be made to determine the concentration, ifany, of alcohol in the person’s blood, or (ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable ofproviding a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of thequalified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine theconcentration, if any, of alcohol in the person’s blood; and (

b) if necessary, to accompany the peace officer for that purpose. (Underline mine) [48] Section 254(5) provides that: Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section. [49] The offences of failure or refusal to comply with a demand under s. 254(5) and under s. 253(1)(

a) constitute separate and distinctacts or delicts and therefore an accused can be convicted of both though they arise out of one incident: R. v. Schilbe, (1976) (ON CA), 30 C.C.C. (2d) 113 (Ont. C.A.). “THE REFUSAL” V ANALYSIS Issue No. 1: “Cst. Villereal, the arresting officer, did not have reasonable and probable grounds to make a Breathalyzer demand to theAccused under s. 254(3)”; [50] As will be seen, what constitutes “Reasonable and Probable Grounds” to make a s. 254(3) Breathalyzer demand has been thesubject of much judicial

interpretation.

Burden of Proof [51] Section 254(3) does not set an onerous threshold. It must not be inflated to the context of testing trial evidence. All too often,though, the defence invites the court to engage in minute decisions of an officer’s opinion, an opinion developed on the spot without theluxury of judicial reflection: R. v. Censoni, [2001] O.J. No. 5189 (Ont. S.C.J.). [52] Likewise, reasonable grounds can amount to less than a prima facie case: R. v. Storrey, (SCC), [1990] 1 S.C.R.241 and R. v. Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527.

The prosecution need only have demonstrated objectivereasonable grounds to believe, not a prima facie case, that the accused’s ability to drive was at least slightly impaired by alcohol or drugconsumption: Censoni, supra. Hearsay [53] It is trite law that an officer’s understanding from exchange heard on police radio can assist in the formulation of reasonablegrounds: Censoni, supra. Likewise, an officer is entitled to consider hearsay information received from other parties in determiningwhether reasonable and probable grounds for a demand exist: R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (C.A.).

Seealso R. v. Strongquill, (1978), (SK CA), 43 CCC (2d) 232 (Sask. C.A.). Finally, where some of the facts consideredby an officer in reaching his or her conclusion that there were reasonable grounds to make a breath demand became known to him or herbased on hearsay, that, in and of itself, does not vitiate the reasonableness of those grounds: R. v. Seabrook, (BC CA),[1991] B.C.J. No. 3467 (C.A.). Accident [54] An investigating officer is entitled to rely on the circumstances of an unexplained collision in forming his grounds: R. v. Watson,[2010] B.C.J. No. 1186 (C.A.).

Further, consumption plus an unexplained accident may also generate reasonable and probable groundsalthough that may not always be the case: Bush, supra. [55] There is also abundant jurisprudence confirming that the circumstances of an accident can be taken into account, especially if it isan unexplained single vehicle accident, along with other evidence, in determining whether an officer had reasonable and probablegrounds to arrest an individual for impaired driving: R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 at par. 18 and R. v.Saulnier, [1990] B.C.J.

No. 161 (C.A.). [56] Also, evidence that an accused was driving on a dry road on a clear night and ended up in a ditch can be properly considered informing reasonable grounds: R. v. Mould, [1999] O.J. No. 5201 at par. 22. Flight [57] It is well accepted in Canadian jurisprudence that an arresting officer can have reasonable and probable grounds that an accusedhas committed the offence of impaired driving based on both his observation of a strong odor of alcohol and the accused’s after the factconduct in fleeing the officer even where no other signs of impaired driving are observed.

Clearly, the fact of attempted avoidance ofpolice in the circumstances of this occurrence is capable of raising an almost irresistible inference: R. v. Reynolds, [2001] O.J. No. 3252at par. 1. Odor of alcohol on breath and beer found at the scene of the accident [58] Where an accused is injured in a single vehicle accident, found to be incoherent and delirious with a strong odor of liquor detectedon his breath and a case of beer is found at the scene, an officer has “ample reasonable and probable grounds” to believe that the accusedhad committed an offence under s. 253 of the Criminal Code: R. v.

Pohortsky, (SCC), [1987] S.C.J. No. 26. Explanation for Indicia [59] There is no onus on the investigating officer to enquire as to possible causes of any indicia observed. An officer is not required toresolve possible alternate explanations for indicia before considering the circumstances as a whole: R. v. Wong, [2011] B.C.J. No. 473,leave refused [2011] S.C.C.A. No. 90.

Absence of Particular Indicia [60] The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, are not present does notrender the officer's subjective belief, based on the signs he observes, objectively unreasonable: R. v. Wang, 2010 ONCA 435 ,[2010] O.J. No. 2490 (C.A.). Totality of the evidence [61] It must not be forgotten that reasonable and probable grounds as to impairment is essentially an opinion: Censoni, supra.

Thecourt must answer the following question: does the totality of the evidence available to the officer at the time he formed the beliefsupport an objective finding that he had reasonable and probable grounds to believe that the ability of the driver was impaired by alcoholor drug? Censoni, supra. [62] Further, the court's determination of whether an officer had reasonable and probable grounds does not involve a detaileddissection of each fragment of information received and of each observation made.

Rather, on the totality of the circumstances involved,the court must consider whether the officer made a proper demand: R. v. Marsan, [1990] B.C.J. No. 2581.

Other considerations [63] The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate. It is whether it wasreasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions will not result in its legal rejection byresorting to facts which emerge later. What must be measured are the facts as understood by the peace officer when the belief wasformed: R. v. Musurichan, 1990 ABCA 170 , [1990] A.J.

No. 418. [64] Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impactingon perception or field of vision, reaction or response time, judgment and regard for rules of the road: Bush, supra; [65] The degree of impairment of a driver under investigation is not determinative. If an investigating officer has objectivelyreasonable grounds and an honest subjective belief that a driver's driving ability is even slightly impaired by the consumption of alcoholthat will suffice: Wong, supra at par. 20 and R. v. Stellato, (ON CA), [1993] O.J.

No. 18 (C.A.); [66] In evaluating the objective support that exists for an investigating officer's subjective belief that an accused had committed anoffence under s. 253(1), the court must consider the facts as understood by the officer at the time the demand was made (and notlater): R. v. Wong, supra, R. v. Musurichan, 1990 ABCA 170 , [1990] A.J. No. 418 (C.A.) and R. v. Saulnier, [1990] B.C.J.No. 161 (C.A.). This includes the facts understood by the officer that cut against, as well as favour, the inference that the accused hadrecently committed an offence under s. 253(1): Chartier v.

Attorney General for Quebec, (SCC), [1979] 2 S.C.R.474 and R. v. Todd, 2007 BCCA 176 , 2007 BCCA 176. [67] The court must also view those grounds from the perspective of the skills and knowledge possessed by the police officer and notfrom the perspective of a layperson: R. v. To, [1998] B.C.J. No. 1323 (C.A.). [68] In New Brunswick, Judge Ferguson, as he was then, discussed the meaning of “Reasonable and Probable Grounds” in R. v.Russell, 2007 NBPC 17 at par. 20: Reasonable and probable grounds have been defined by the Supreme Court as credibly based probability or reasonable probability.

R. v.Baron (SCC), [1993] 1 S.C.R. 416 (S.C.C.) per Sopinka J. at paragraphs 42-4. Where that standard falls on the spectrum of ‘reasons to believe’ was determined in an earlier pronouncement of the Supreme Court in R.v. Debot (SCC), [1989] 2 S.C.R. 1140 (S.C.C.) where Wilson J. speaking for the court on the issue said at paragraph 47: “The question as to what standard of proof must be met in order to establish reasonable grounds for a search may be disposed ofquickly.

I agree with Martin J.A. that the appropriate standard is one of "reasonable probability" rather than "proof beyond a reasonabledoubt" or "prima facie case". The phrase "reasonable belief" also approximates the requisite standard.” (Underline mine) [69] In R. v. Yurechuk 1982 ABCA 341 , [1983] 1 W.W.R. 460 (C.A. Alta., 1982) at pp. 462 and 463, the Court stated asfollows with respect to reasonable and probable grounds: The test is whether or not what he understood to be the grounds at the time were reasonable and probable grounds.

It is, therefore, in asense subjective because what the court looks into is the state of mind of the officer, what did he understand the circumstances to be. It's,in a sense, also objective because the court objectively examines the circumstances as understood by the officer. It is not an objectivetest in the sense that the court looks over the shoulder of the officer to see whether or not the circumstances as he understood them werefactual.

But, manifestly, the statute intended that the court weigh the grounds that the officer understood to be present; weigh them onthe test of reasonableness and probability. (Underline mine) [70] In R. v. McKinnon, [2012] B.C.J. No. 1422 (QL), the issue before the court was whether the arresting officer had propergrounds to make a Breathalyzer demand to the accused who was charged with impaired driving and refusing to provide a breath sample.A civilian witness was leaving a pub and saw the accused walk to his truck. He was concerned about the accused's sobriety so he offeredhim a taxi.

The accused ignored the witness and walked over to his truck. The accused then vomited out the window, splashing her, anddrove away. The witness called 911 and provided the license plate and description. The officer quickly found the accused stopped at anintersection and followed him. The officer observed the accused make a wide turn and a late stop. When the officer stopped the accused,he noticed the accused's breath smelled strongly of alcohol. The accused confirmed he had come from a pub but claimed he had nothingto drink.

The accused had vomit on his face, clothing and vehicle, slurred speech, bloodshot eyes and a flushed face. When directed towalk, the accused moved very slowly. The officer arrested the accused for impaired driving and made the Breathalyzer demand. [71] The court in McKinnon concluded that the Breathalyzer demand was lawful. The civilian witness tended to exaggerate and couldbarely suppress her outrage, but was overall truthful and accurate.

The witness report, erratic driving, vomit, admission that the accusedcame from a pub, strong odour of alcohol on his breath, bloodshot eyes, flushed face and slow walking were all indicia of impairment. However, whether one could speculate about other explanations for the accused's behaviour was not the issue.

There was no doubt thatthe officer's subjective opinion was properly grounded in the totality of the evidence. [72] In my view, other decided cases are of somewhat limited assistance in assessing the sufficiency of the objective support for aninvestigating officer's subjective opinion that he or she had reasonable grounds, in a given case, to make a s. 254(3) breath demand.Clearly, “reasonable grounds" cases are multifarious and fact-dependent and, as such, their precedential value is to some degreeconstrained: R. v. Rhyason, 2007 SCC 39 , [2007] S.C.J. No. 39 and R. v.

Skuce, 2009 BCPC 333 , 2009 BCPC 333.That being said, however, evidence or observations of the following is usually considered when assessing whether reasonable and

probable grounds exist: • accident, especially an unexplained single vehicle accident (ie. vehicle leaving the roadway without explanation); • alcohol consumption; • bad driving; • flight; • flushed/red face, red/glassy/bloodshot/watery eyes; • fumbling documents; • slurred speech; • difficulty with balance/unsteady on feet; • odor of alcohol; • difficulty following directions; • driving within three hours; • failure registered on an approved screening device. [73] I am also mindful of the comments made by T.S. Woods Prov. Ct. J. in R. v. Sundberg, [2010] B.C.J.

No. 1543 (at par.15) as towhat the law requires in terms of reasonable and probable grounds for making a 254(3) Breathalyzer demand: How many and what indicia does it take to achieve a critical mass? There is no uniform answer. Every case will turn on its ownfacts: Bernshaw at para. 46 and more recently R. v. Skuce, 2009 BCPC 333 at para. 19. The configuration will differ to some extentfrom case to case and some observations will be weighted more heavily in the equation than others. Reliability and Credibility of Witnesses at Trial [74] To particularize its position that Cst.

Villareal did not have reasonable and probable grounds to make a Breathalyzer demand tothe Accused under s. 254(3), the Defence submits that the Court should infer that, if something is not noted in this officer’s notes, he didnot observe it or, in the alternative, it simply did not happen. The Defence also relies on this proposition with respect to any part of thecivilian witnesses’ viva voce evidence not contained in their respective written statements. [75] In R. v. Michel L. Beaulieu, 2012 NBPC 8 , my colleague, P.E. Duffie J., quoted with approval the comments made bythe court in R. v. Machado,

(2010) ONSC 277 at paras. 120, 121, 122 and 123: 120 Third, is whether the absence of more fulsome notes from the scene and throughout the preparation of the report diminishedthe weight to be attached to his opinion.

Included in that question is another issue, whether the notes are intended to be disclosure orwhether the notes are only to be prepared to assist the officer in refreshing his or her memory and happen to be disclosed to defencecounsel. 121 While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must recordeverything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some (note Mr. Brauti) haveattempted to elevate the judgment in R. v. Zack, [1999] O.J.

No. 5747 (O.C.J.) to a statement that if an event or observation is not in thenotes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations thatare not noted have been accepted: R. v. Thompson (ON CA), (ON CA), (2000), 151 C.C.C. (3d)339 (Ont. C.A.); R. v. Bennett [2005] O.J. No. 4035 (S.C.J.). 122 I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816: 24 It should be remembered that an officer's notes are not evidence, but are merely a testimonial aid.

Trial judges routinely tellofficers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independentrecollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate theofficer's independent recollection from the equation. The notes would become the evidence.

25 The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony,must be determined by the trier of fact on a case-by-case basis. 123 The question is whether the absence of more fulsome notes impacted on P.C. Wright's evidence. (Underline mine) [76] In R. v. Bennett, 2005 ON SC 30329 CanLII at par. 114, Mr. Justice Ferguson added: 114 The defence also relied on R. v. Zack, [1999] O.J. No. 5747 for the proposition that if what is at issue is not in the officer's notesthen the court should infer that it did not occur.

I do not accept that proposition and don't think Zack says that. Also, the case before meis not a case where the officer wrote nothing indicating that an event occurred. He noted that he had read the rights to counsel and thatthe accused understood and declined. What was missing was a note of the exact words spoken. I accept the officer's evidence that theseevents occurred. [77] First, I acknowledge that the Crown's evidence was not perfect. That being said, however, I am not convinced that the Courtshould infer that, if something was not in Cst.

Villareal’s notes, he did not observe it or, in the alternative, it simply did not happen. Rather, I must look at the totality of Cst. Villareal’s evidence to determine if I can rely on the evidence he gave from his independentrecollection of facts which was not contained in his notes or in his Occurrence Report. [78] Although Cst. Villareal clearly admitted to the inconsistencies as pointed out by the Defence, I did not find anything in hisevidence that would cause me to have concern about its reliability. He provided sufficient detail and gave his evidence clearly and in astraightforward manner.

He was forthright and unshaken in his evidence. Given that the majority of the indicia of impairment testifiedto at trial was recorded in his notes, the omission of two, namely the slurred speech and the unsteady in feet, was not suspect. To beclear, I am of the opinion that the Court should not be involved in the “micromanagement” of an officer’s note taking. I find support forthis position in R. v. Golubentsev, [2007] O.J. No. 4608. [79] As I see it, the issue with respect to Cst. Villareal’s evidence is not contradiction between his viva voce evidence and his writtennotes.

Rather, the issue, if any, is that not surprisingly, his evidence at trial is more complete and detailed than what is included in hisnotes. Having said that, I did consider Cst. Villareal’s evidence and I find that he clearly had some independent memory of the events hewas relaying to the court aside from his notes. His memory and his notes were tested in cross-examination. Clearly, he did not waver onthe most important details. He was in no doubt whatsoever as to the indicia of impairment he observed on the Accused or as to theinformation communicated to him throughout the investigation.

As a result, I find that Cst. Villareal’s evidence is reliable amid the factthat some indicia of impairment observed were not included in his notes or in his Occurrence Report. [80] As to Cst. Prosser’s testimony, however, my views are different. There is clearly contradiction between his viva voce evidenceand what is included in documents he prepared. [81] It is one thing for Cst. Villareal to provide the Court with a lengthy testimony that includes a level of details and observations notdescribed in his notes or to simply miss checking an indicia of impairment on an administrative form.

However, it is another thing forCst. Prosser to provide the Court with a succinct testimony including details of observations that are clearly at odds with a document heprepared. To recap, Cst. Prosser testified that the Accused had a slurred speech and that she was unsteady on her feet. Interestinglyenough, on a document he even became unsure he prepared himself, he checked that the Accused used a “fair choice of words” and thather balance was “fair”. As a result, I find Cst.

Prosser’s testimony as to the indicia of impairment observed to be unreliable. [82] As to the civilian witnesses, I find their respective evidence to be credible and reliable and I accept it in its totality. I am satisfiedthat Mr. Hawkins, a student at the time, was given no direction as to what to include in his statement. It is not surprising and, quitefrankly, it was to be expected that his viva voce evidence would contain more details than his written statement. With respect to Mrs.Dawson, she was awoken in the early hours of the morning to provide a written statement.

Under the circumstances, it was expected aswell that it would not contain the same level of details she offered before the Court. I am also satisfied that Mr. Snow was truthful at alltimes during his viva voce evidence, especially when he testified that the Accused was “like drunk”. It is trite law that a layperson or anon-expert can give opinion evidence of impairment. The evidence of a peace officer is not entitled to any special consideration: R. v.Graat, (SCC), [1982] S.C.J. No. 102.

Reasonable and Probable Grounds [83] As I see it, no real issue is taken with the fact that Cst. Villareal had the requisite subjective belief. The sole issue is whether hissubjective belief was objectively reasonable in the circumstances. [84] I must not, as I have been invited to do by the Defence, speculate about possible alternative explanations for each of thevarious indicia noted by Cst.

Villareal in his testimony and then use that speculation, not rooted in any evidence, as a basis forquestioning the sufficiency of the objective foundation for the officer's subjective opinion that the Accused had committed an offenceunder s. 253(3).

Rather, I must consider the convergence of the totality of the personal observations and other information that Cst.Villareal had at his disposal, namely, observations and other information that he said he believed justified the making of a Breathalyzerdemand, all within the context of the evidence as a whole and evaluate the sufficiency of the objective grounds from that perspective. [85] Again, as per the directions given by the court in R. v. Yurechuk, supra, I must not look over the shoulder of Cst.

Villareal to seewhether the circumstances as he understood them were factual. [86] In applying the law as described above, I am of the opinion that the factual information known to Cst. Villareal coupled with hisown observations of the usual indicia of impairment were amply capable of elevating his opinion that the Accused was impaired beyondthat of a mere suspicion and amounted to reasonable and probable grounds in accordance with s. 254(3). He formed this opinion at 00h15which, according to his testimony, was 30 minutes before attending the hospital where he arrived at 00h45. [87] Also recall that Cst.

Villareal was in constant communication with other peace officers either at the scene of the accident orthrough the Communication Centre and that he was being apprised of any development in the investigation. [88] On the totality of the evidence, I am satisfied that Cst. Villareal based his s. 254(3) Breathalyzer demand to the Accused based onhis observations of her red heavy eyes, slurred speech, being unsteady on her feet, the strong smell of alcohol on her breath, informationconveyed to him by Cst.

Cains throughout the investigation of civilian witnesses, injuries to her lip consistent with blood observed in theinterior of the Van and the K-9 officer following a track to the area where he had located the Accused. He had also observed an emptycase of beer in the Van and the key provided to him by the Accused could start the Van. Moreover, he was investigating an unexplainedsingle vehicle accident on a clear night with no rain or fog and involving the operator of the Van who had fled the scene.

I also find thathe turned his mind as to whether the Accused had operated the Van within the preceding three hours as evidenced by his testimony thathe knew he had been dispatched at 23h25 for an accident that had just happened. This obviously satisfies the requirement that an officerturns his mind as to the time an accused operated a motor vehicle as discussed by the Court of Appeal of New Brunswick in R. v. Searle,2006 NBCA 118 .

It follows that, in my view, this clearly achieves the “critical mass” required in terms of reasonable andprobable grounds to justify a s. 254(3) Breathalyzer demand. [89] On the totality of the evidence before me, I find that the Crown has proven to the extent required that Cst. Villareal’s subjectivebelieve was grounded on an appropriate measure of objectively verifiable facts.

Case law – Breathalyzer Demand made As Soon As Practicable Issue No. 2: “The Breathalyzer demand was not made as soon as practicable” [90] The Defence contends that the Breathalyzer demand made to the Accused was unlawful in that it did not comply with the “assoon as practicable” requirement of s. 254(3)(a)(i). In particular, the Defence argues that the demand was not made “as soon aspracticable” and, likewise, the Accused was not afforded the opportunity “to provide the breath sample as soon as practicable”. In myview, this argument must fail. Let me explain. [91] Cst.

Villareal formed the belief that he had reasonable and probable grounds to make the Breathalyzer demand at approximately00h15 on November 29, 2012 (30 minutes prior to attending the hospital). At 00h45, he attended the hospital and read the demand to theAccused at 00h50. However, Cst. Villareal could not escort the Accused to the breath room at the police station until 02h05 for tworeasons: (1) the Accused had yet to obtain her discharge from the hospital as she was waiting for stitches for the deep cut on her face;and (2) he first needed to satisfy himself, namely in speaking with Dr.

Atalia, that the Accused could safely provide a sample into theBreathalyzer instrument. [92] Recall that “as soon as practicable” means within a reasonably prompt time, not “as soon as possible”. Likewise, a delay while anofficer satisfies himself that the accused has received medical treatment is appropriate: R. v. Squires (2002), (ONCA), 166 C.C.C. (3d) 65 (Ont. C.A.). See as well R. v. Purdon, [1989] A.J. No. 1030 (C.A.) where the officer placed the accused underarrest at 02h28 but did not make the demand for a blood sample until 03h15 when the ambulance attendants placed him in theambulance.

Forty-seven minutes thus elapsed and the demand was not made, it was urged, within the time limited as prescribed by theCriminal Code. [93] The Alberta Court of Appeal ruled that thecircumstances justified the delay in making the demand. Duringthe time before the accused was placed in the ambulance, his

apparent medical condition required the emergent attention ofall who were involved. The accused required immediate help sothat his injuries, the full extent of which could not then beknown, would not be aggravated. Once the officer arrested theaccused, his primary concern was to secure first aid treatmentfor him and let the ambulance attendants attend to his healthand safety. Under these circumstances, the demand was made"as soon as practicable". For a more in depth New Brunswickanalysis of the proper

interpretation to be given to the meaningof “as soon as practicable”, see R. v. Harrison, 2013 NBPC 14. [94] In the case before me, Cst. Villareal’s first and foremost concern was the Accused’s health. As well, it was only appropriate toensure that she would be able to understand the Breathalyzer demand and respond in a meaningful way. That is why he first asked for anambulance to be dispatched to the scene where he had located the Accused. For the same reasons, he waited until the cuts on her face hadbeen treated prior to escorting her to the breath room at the Police Station. Clearly, Cst.

Villareal could appreciate that the Accusedrequired immediate help so that her injuries, the full extent of which could not then be known, would not be aggravated by providing asample into the Breathalyzer instrument. [95] I am also of the opinion that Cst.

Villareal’s behavior both at the scene where he located the Accused and called an ambulance toensure medical treatments for the cuts on her face and at the hospital was professional, even human, and in compliance with s. 254(3).His decision to postpone additional legal steps, including the taking of a Breathalyzer test, was entirely appropriate in the circumstancesas he did not want to compromise her medical condition. [96] As I have discussed in Harrison, supra, “as soon as practicable” does not impose on the prosecution an evidentiary burden toaccount for every minute between the time of arrest and the reading of the Breathalyzer demand nor does it impose such burden for theperiod of time that elapses between the reading of the demand and the first Breathalyzer sample being taken.

Rather, the Court mustfocus on the overall period and consider whether the police acted reasonably and expeditiously in all the circumstances. It is also thereason of the delay, not just the actual time of the delay, which this Court must consider. [97] The Defence’s other argument suggesting that the standard 20 minute observation period required by Cst. Prosser, the qualifiedtechnician, does not satisfy the requirement under s. 254(3)(a) “to provide a sample as soon as practicable” must also fail. Clearly, Cst.Prosser explained why each and every minute of the observation period is required.

At any rate, in the absence of an unreasonable delayonce an accused is brought over to the breath room, the Court should not be involved in the “micromanagement” of the qualifiedtechnician’s time during his observation period prior to taking a breath sample. This is also in accord with the views expressed by theCourt of Appeal of British Columbia in R. v. Cander, [1981] B.C.J. No. 661 (C.A.), leave dismissed [1981] S.C.C.A. No. 163, where 20minutes of observation of the accused prior to the first Breathalyzer test in order to get an accurate result was reasonable. Likewise, in R.v.

Murdy, 1979 ABCA 286 , [1979] A.J. No. 613 (C.A.), a delay of 20 to 25 minutes for observation of the accused was notunreasonable in the circumstances. See also R. v. Henry, [1988] S.J. No. 364 (Q.B.) for a similar approach. [98] In the instant case, I have no hesitation concluding that Cst. Villareal’s demand in the early morning hours of November 29, 2012was made both "as soon as practicable" and "within a reasonably prompt time". In all the circumstances, I find that the Breathalyzerdemand was read to the Accused “as soon as practicable”.

Likewise, I am satisfied that the Accused was afforded the opportunity “toprovide the breath sample as soon as practicable”. I am also satisfied that any delay, either between the Accused’s arrest and the readingof the Breathalyzer demand or between the demand being read and the opportunity to actually provide a sample, was reasonable underthe circumstances. Moreover, I find that both Cst. Villareal and Cst. Prosser acted reasonably and expeditiously in all the circumstances. “IMPAIRED DRIVING” [99] The offence of impaired operation or impaired care and control of a motor vehicle contrary to s. 253(

a) of the Criminal Code ismade out by proof of any degree of impairment ranging from slight to great. There is no requirement of proof of a marked departure fromnormal behaviour. [100] In any given case, impairment is an issue of fact which the trial judge must decide on the evidence. The trial judge must besatisfied as to the accused's guilt beyond a reasonable doubt and thus, before convicting, the trial judge must be satisfied that theaccused's ability to operate the motor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave thetrial judge with a reasonable doubt, then the accused must be acquitted: R. v. Stellato (1993) (ON CA), 78 C.C.C.(3d) 380 (S.C.C.).

[101] In most cases, a slight departure from normal conduct will not meet this test. In R. v. Andrews (1996) 1996 ABCA 23 ,104 C.C.C. (3d) 392 (Alta. C.A.), the court noted the important difference between "slight impairment" generally and "slight impairmentof one's ability to operate a motor vehicle".

The question is not whether the individual's functional ability is impaired to any degree, butwhether the person's ability to drive is impaired to any degree. [102] Where the observations of driving and observations of the accused are equivocal, Courts have often not been satisfied beyond areasonable doubt that the Crown has proven the charge of impaired driving.

For instance, where the driving was, at best, a slightdeparture from normal conduct such as excessive speed, crossing over lanes, or turning without signaling, courts have found thisevidence of limited assistance in determining whether the person's ability to drive was impaired by alcohol. Where a driver’s functionalabilities are consistent with alcohol consumption, but which does not lead to the inference that his ability to drive is impaired, courts aregenerally reluctant to convict: See R. v. Dolhy [2005] O.J. No. 1767 (Ont.C.J.); R. v. Lozanovski 2005 ONCJ 112 , [2005] O.J.No. 1322 (Ont. C.J.); R. v.

C.B. 2005 ONCJ 306 , [2005] O.J. No. 5382; R. v. Peglar [2006] O.J. No. 2275 (Ont. C.J.). [103] However, in this case, the accident is very significant. There is no evidence that adverse weather or road conditions werecontributing factors. Also recall that Mr. Snow testified that “the corner street light illuminated the intersection very well” where theaccident occurred. [104] Moreover, the Ontario Court of Appeal held that the fact of an accident with no apparent external cause, combined with evidenceof alcohol consumption, is sufficient proof of impaired driving: R. v. Watts, [2007] O.J.

No. 1382 (C.A.). [105] Likewise, in R. v. Varcoe, [1992] O.J. No. 3833, though none of the evidence alone was enough to prove impaired driving, thetotality of the evidence was. There was evidence that the accused had consumed alcohol before driving. He was involved in anunexplained single vehicle accident. There were no adverse weather conditions. The car slid on a paved road that was not slippery. Theweather was clear. Three witnesses were able to smell alcohol on the accused in his vicinity. After the accident, a witness went to thecar and saw the accused driving.

He could smell alcohol, though he could not tell whether the smell emanated from the car or from him.The officer who investigated the accident also could smell alcohol and observed the accused’s glassy eyes. [106] In my opinion, the Court may not speculate as to other causes of the bad driving, or of an unexplained single vehicle accident,where no such evidence is called.

This is particularly true in a case where such an accident occurred absent adverse weather or roadconditions being contributing factors. [107] The Defence argues that the accident in question was explained in that there is evidence that about five other accidents haveoccurred at that same location within the last 20 years and perhaps one even more recently.

In my view, this is an attractive argument thatmay have greater force in more compelling circumstances. [108] By analogy, if the operator of a motor vehicle having consumed alcohol were to collide with a stationary traffic sign, or drivethrough a red traffic light signal, in a location where other motorists had done the same some five times within the last 20 years or evenrecently, surely this would not constitute an “explained” single vehicle accident, especially where there is evidence of alcoholconsumption. [109] There is compelling evidence before the Court that the Accused had consumed alcohol.

In fact, she made this admission to Cst.Villareal immediately after being read her rights and caution under the Charter. He also noted a strong odor of alcohol on her breath andhe found an empty case of Budweiser beer in the Van. Each of the pieces of evidence, standing alone, may not be indicative of operatinga motor vehicle while one's ability to do so is impaired by the consumption of alcohol.

In my view, however, the totality of the evidenceestablishes that fact beyond a reasonable doubt. [110] Parenthetically, I am mindful that the limit on the use of evidence at the roadside as going only to grounds applies only tocompelled evidence by way of roadside or testing. Clearly, it does not apply to Cst. Villareal’s observations of the Accused’s varioussigns of impairment such as odor of alcohol, condition as to her eyes, and observations of her speech or physical movement orcoordination. [111] At any rate, Cst.

Villareal observed a number of indicia of impairment on the Accused, namely red heavy eyes, slurred speech andbeing unsteady on feet along with a strong odor of alcohol. Mr. Snow thought the Accused was “like drunk” and he observed her “turnaround all fours trying to get up over the bank….crawling up first over Golden Grove Road, then turned and then down Golden GroveRoad towards town like she was confused…ran from side to side”. Mr. Hawkins noted her slurred speech and he too thought theAccused “was drunk given the way she was leaning over the door”. Mrs.

Dawson observed the female operator of the Van “getting out…half falling, trying to crawl over the lawn, using her hands as well to get up and being unsteady”. An unexplained single vehicleaccident took place on a clear night with no rain or fog and the operator of the Van fled the scene. [112] The only evidence that the Court has heard as to the indicia of impairment are from the Crown witnesses. The Accused did nottestify at trial.

While it is true that there is no Breathalyzer or blood sample analysis before the Court, the fact remains that the Accusedwas involved in an unexplained single vehicle accident with compelling evidence of alcohol consumption along with various indicia ofimpairment.

While it is arguable that some of the conversations which took place between the Accused and some of the witnesses couldbe classified as hearsay, it was nonetheless admitted into evidence for the purpose of establishing the Accused’s slurred speech. [113] In all of the circumstances of this case, I am of the view that the Crown has established beyond a reasonable doubt that theAccused's ability to operate the Van was impaired by the consumption of alcohol. VII DISPOSITION The “Refusal” charge [114] In the result, I am satisfied that the Breathalyzer demand read by Cst.

Villareal to the Accused pursuant to s. 254(3) ofthe Criminal Code was made in circumstances where he had objectively reasonable grounds for his honest, subjective belief that the

Accused had committed an offence contrary to s. 253(1) (a). It follows that, in terms of reasonable grounds, the demand was a lawful one. I also find that the demand was made to the Accused “as soon as practicable”. Likewise, she was offered the opportunity to provide a breath sample into the Breathalyzer instrument as soon as practicable. Accordingly, I find the Accused guilty of refusing to comply with a breath demand contrary to s. 254(5) of the Criminal Code.

The “Impaired Driving” charge [115] The Crown has also established beyond a reasonable doubt that the Accused's ability to operate the Van was impaired by the consumption of alcohol on November 28, 2012 contrary and in violation of s. 253(1)(

a) of the Criminal Code . I therefore find her guilty of this offence. Dated at Saint John, New Brunswick, this 9 th day of December 2013. ____________________________________ Marco R. Cloutier Judge of the New Brunswick Provincial Court